4.3
Ancillary proceedings 

It will be incumbent upon the opposition division to conduct ancillary proceedings arising in the course of opposition proceedings. Such ancillary proceedings may for example concern a request for re-establishment of rights in respect of a time limit which was not observed vis-à-vis the EPO during the opposition proceedings, a request for a decision concerning a finding arrived at by the formalities officer that a right has been lost or a request for exclusion from file inspection. Additional tasks may be entrusted to the opposition divisions by the President of the EPO in accordance with Rule 11(2).

As regards exclusion from file inspection pursuant to Rule 144 in conjunction with the Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, J.3, reference is made to A‑XI, 2.1. Documents having a substantive and/or procedural bearing on opposition proceedings can only exceptionally be excluded from file inspection (T 1691/15). Communications dealing with a request for exclusion from file inspection are excluded from file inspection and are issued separately from communications dealing with other issues. Depending on its content, a document (provisionally) excluded from file inspection and any communication concerning a request for its exclusion from file inspection may be forwarded to the other party or parties (Rule 81(2)). As the public must be informed of the grounds prejudicing or supporting the maintenance of an opposed patent, only documents, or parts thereof, not (provisionally) excluded from file inspection can be used as evidence to prove or to refute a ground for opposition.

If a party requests that the EPO excludes an otherwise public non-patent literature document from file inspection for reasons of copyright, the opposition division will interpret this as a request not to make the document available to third parties in the public part of the file. This request, in the above interpretation, is normally granted if the copyright of the document in question is not owned by a party to the proceedings and the document in question is relatively easily retrievable including against payment. For example, a scientific article is usually easily retrievable and its copyright is assigned to the editor. In contrast, a third-party company brochure is not easily retrievable. If the copyright of such company brochure is owned by a party to the proceedings, the request is refused by the opposition division and the document is made available via file inspection.

Where the request not to make a document available via file inspection for reasons of copyright is acceded to by the opposition division, the page(s) carrying the bibliographic details of the non-patent literature document (normally the cover page) will nonetheless be made available via file inspection in order to ensure that members of the public are in a position to retrieve the entire document. The non-patent literature document is not considered as being excluded from file inspection within the meaning of Rule 144 and can be used as evidence in the opposition proceedings.

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